State v. Walker, A-49 September Term 2011; Supreme Court; opinion by Rodriguez, P.J.A.D., temporarily assigned; decided April 10. 2013. On certification to the Appellate Division. [Sat below: Judges Fisher and Grall in the Appellate Division; Judge R. Santiago in the Law Division.] DDS No. 14-1-9554 [25 pp.]

Newark Police Detective James Cosgrove received a tip from a confidential source, who had provided useful information on at least 10 occasions, that a black male was selling marijuana, cocaine and heroin from a specified apartment in a Newark public-housing project. Cosgrove and fellow officers, dressed in plain clothes, went to defendant’s apartment, intending to buy CDS from him in order to corroborate the tip.

Officer Rios knocked at the apartment door. A black man, later identified as defendant Rashad Walker, answered it. He was smoking a hand-rolled cigarette. Cosgrove immediately recognized the smell of burning marijuana. When defendant saw Rivera’s police badge, he threw the cigarette into his apartment and attempted to slam the door shut. Cosgrove testified that the officers entered the apartment to prevent defendant from fleeing, destroying evidence, retrieving a weapon, or otherwise impeding his arrest for possession of marijuana.

In plain view in the living room, the officers saw narcotics and paraphernalia.

After defendant’s motion to suppress was denied, he pleaded guilty to possession of CDS with intent to distribute and possession of CDS with intent to distribute within 500 feet of public housing.

The Appellate Division reversed the denial of defendant’s motion to suppress, holding that as a matter of law, the circumstances did not provide a sufficient basis for the officers’ entry into defendant’s home. The state’s petition for certification was granted. It argues that the tip provided probable cause for defendant’s arrest inside his home and that his answering the door while smoking marijuana established additional probable cause. As to whether exigent circumstances existed, the state urges the court to reverse the Appellate Division panel’s decision because it is inconsistent with Kentucky v. King, 179 L.Ed.2d 865 (2011), and State v. Hutchins, 116 N.J. 457 (1989).

Held: Although the information in the tip was uncorroborated, by the time the officers knocked at the door of defendant’s apartment, subsequent events, created by defendant’s own actions, established probable cause and exigent circumstances that justified an entry into his apartment. Thus, the warrantless seizure of the marijuana cigarette and the CDS found in his apartment was proper and permissible under the New Jersey and federal constitutions.

The Fourth Amendment of the U.S. Constitution and Article I, Paragraph 7 of the N.J. Constitution protect citizens against unreasonable police searches and seizures by requiring warrants issued on probable cause. A warrantless arrest in a person’s home is presumptively unreasonable. Nonetheless, exigent circumstances in conjunction with probable cause may excuse police from compliance with the warrant requirement.

The court says the informant’s history of providing reliable information to police was sufficient to support his veracity. However, his past reliability cannot itself establish probable cause. There is no indication either directly from the source or in the details provided in the tip that specifies the informant’s basis of knowledge. Therefore, the tip lacked the requisite basis of knowledge to provide probable cause to believe defendant possessed CDS with intent to distribute. Nevertheless, the officers observed defendant smoking a marijuana cigarette. At that point, they had probable cause to arrest him.

However, a showing of exigent circumstances was required to comply with the Fourth Amendment.

In determining whether exigency exists, courts consider many factors, including the severity or seriousness of the offense involved and the reasonable belief that the evidence was about to be lost or destroyed.

The court then reviews a number of cases that have addressed the severity of the underlying offense, including State v. Holland, 328 N.J. Super. 1 (App. Div.), certif. denied, 164 N.J. 560 (2000), which held that where the only evidence officers have before entering a premises is the smell of burning marijuana, they only have probable cause to believe that a disorderly persons offense was being committed and exigent circumstances do not exist to justify a warrantless entry into the home.

The court notes that case law also addresses exigency manufactured by the police. It says that, to justify the warrantless home arrest here, the state must establish (1) the existence of exigent circumstances, and (2) that those exigent circumstances were not police-created.

The court then examines the objective reasonableness of the officers’ conduct at each stage of their interaction with defendant. It says that when defendant appeared at the door smoking a marijuana cigarette, a disorderly persons offense was being committed in the presence of police in the hallway of a public-housing building, where the officers had a right to be. This gave rise to probable cause and authorized the officers to arrest him for the disorderly persons offense.

Because the officers directly observed defendant committing an offense and attempting to flee, they were compelled to act to prevent him from disposing of the marijuana cigarette or eluding them. Although the underlying offense was a disorderly persons offense, the circumstances indicate that the warrantless entry into defendant’s home was objectively reasonable. First, the officers saw him commit the offense. Second, there was a reasonable belief that the evidence was about to be lost or destroyed. Third, the circumstances presented urgency as any delay would certainly impede apprehension of defendant and seizure of evidence. The court says these facts distinguish this matter from Holland and State v. Bolte, 115 N.J. 579 (1989), which held that disorderly persons offenses are within the category of minor offenses held by Welsh v. Wisconsin, 466 U.S. 740 (1984), to be insufficient to establish exigent circumstances justifying a warrantless home entry.

Accordingly, the court holds that the officers’ entry was justified pursuant to the exigent-circumstances exception to the warrant requirement.

Chief Justice Rabner and Justices LaVecchia, Albin, Hoens and Patterson join in Judge Rodriguez‘s opinion. Judge Cuff, temporarily assigned, did not participate.

For appellant — Hillary K. Horton, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For respondent — Amira R. Scurato, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender).